Furr & Henshaw
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Can unauthorized patient records release be medical malpractice?

Most of the time "medical malpractice" is associated with physical harm to a patient that results from a medical mistake like a surgical error or a misdiagnosis. But medical malpractice can also have an administrative component, which includes injury to patient privacy rights.

The right to privacy of your own health information, including hospitalizations, surgeries, other treatments for physical and mental health, health-related counseling, prescription medications and more, is one of the most intensely private areas of anyone's life. Federal laws, like HIPAA, act in concurrence with state laws to protect that privacy. Violations of either federal or state laws can result in both civil and criminal lawsuits against both individuals and health care facilities for willful or negligent behavior that results in unauthorized disclosures of patient information.

The South Carolina law governing patient privacy is the Physicians' Patient Records Act, Chapter 115 of Title 44 of the South Carolina Code of Laws. It generally prohibits the release of patient records (which includes medical bills) without the express written consent of the patient, and at least by inference would allow for a civil cause of action against anyone making such an unauthorized release.

The prohibition against release of patient records is to absolute. The law recognizes certain exceptional circumstances when a physician may release patient records, such as when the patient's health and life insurer requests them (and has in its possession a patient authorization to do so), or when the patient's attorney makes such a request (and also has the patient's authorization in advance).

Also, legal guardians and personal representatives of patients may authorize disclosure or patient records in lieu of the patient making such an authorization personally.

Whether the prohibition against release of patient records legally actionable depends on the facts of each individual case. This post is meant to be an overview of the subject, and should not be construed as legal advice in itself. Anyone with concerns about a possibly unauthorized disclosure of private health information should consult with a medical malpractice attorney who can assist with the determination of whether such disclosure was in violation of law and what actions to take if it was.

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1900 Oak Street
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Myrtle Beach, SC 29578

Phone: 843-213-6737
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